P L D 1994 Lahore 263 (PLP)

Muhammad Yousaf petitioner filed a suit to pre‑empt the sale of agricultural land equal to 3/40 share out of Khewat No. 1323/1922 Khasra No.1495 measuing 2 Kanals 17 Marlas and Khasra No.1499 measuring 12 Marlas total measuring 3 Kanals 9 Marlas equal to 5 Marlas situate in the revenue estate of village Kahuta, District Rawalpindi which sale has taken place vide a registered sale‑deed, dated 20‑4‑1983. The suit was. filed on 21‑9‑1987. In paragraph No.5 of the plaint making of Talabs in accord with the injunctions of Islam is alleged to have been made as under:‑ "That the plaintiff came to know about the sale in dispute in the first week of June, 1987 and immediately in the presence of witnesses declared that he will file a suit for pre‑emption against the sale and on the same date told the defendant that he should accept the superior right of pre‑emption of the plaintiff and transfer the suit property in his favour and also announced/proclaimed that he will file a suit for pre‑emption but the defendant did not accede to the request of‑ the plaintiff." This suit was contested and was dismissed by the learned Civil Judge, Kahuta, vide judgment and decree, dated 17‑7‑1990 in view of law declared by their Lordships of the Supreme Court of Pakistan in case of Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and the law declared in suo motu Shariat Petition No.l‑R of 1989. Thereafter on the enforcement of Punjab‑ Pre‑emption Ordinance, 1990, the pre‑emptor filed an application on 24‑9‑1990 for, revival of the suit under the provisions of section 36 of the Punjab Pre‑emption Ordinance, 1990. This application was dismissed by the learned trial Court vide order, dated 9‑3‑1991 on the ground that as in the plaint the plea of avoidance of Zarar and existence of Zaroorat has not' been raised as is necessary .to be raised as per provision of section 6 of subsection (2) of the Ordinance, the suit cannot be revived. This order was challenged by the petitioner in revision before District Court, Rawalpindi which remained pending in that Court and was returned on 3‑11‑1993 for want of jurisdiction as per provisions of Ordinance 23 of 1993 and has been presented before this Court. Alongwith the petition an application under section 5 of the Limitation Act has also been filed seeking condonation of delay in filing of the revision petition before this Court. This application is supported by an affidavit.

2. Mr. Muhammad Younas Bhatti, Advocate has appeared on behalf of the petitioner. Raja Muhammad Aslam Advocate has appeared on behalf of respondent. Learned counsel for the petitioner has placed reliance on case of Ghulam Hamdani v. Muhammad Iqbal and 9 others 1993 SCMR 1083, and has contended that as in the plaint making of Talabs in accord with the injunctions of Islam has been alleged, neither the suit nor the application for revival thereof could have been dismissed merely for the reasons that the allegation of evidence of "Zarar" and existence of "Zaroorat" has not been alleged in the plaint. Learned counsel contends that the suit is liable to be revived in accordance with the provisions of section 36 of the Punjab Pre‑emption Ordinance, 1990, but the learned Lower Court has illegally refused to exercise jurisdiction vested in the Court and has committed an error of exercise of jurisdiction. Learned counsel has also placed reliance on case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC

1. In support of contention that, the necessity of making of averments in the plaint regarding avoidance of Zarar and existence of Zaroorat is against the injunctions of Islam, therefore, the order passed by the learned Lower Court is illegal. Learned counsel has further contended that the delay in filing of the revision petition in this Court is due to the fact ‑ that it had remained pending before the Court of competent jurisdiction wherein it was filed within time and after return thereof, the time has been consumed in obtaining of certified copies of the orders till filing of this appeal in this Court, hence it has been prayed that the delay in riling of the civil revision may be condoned. Raja Muhammad Aslam, Advocate has not seriously contested the application seeking condonation of delay. Admittedly, revision petition was filed before the Court of competent jurisdiction within time. It remained pending in that Court till the date when it was returned for presentation before this Court whereafter the petitioner obtained the certified copies of the order and has filed the revision petition before this Court. The cause of delay is supported by an affidavit which is not controverted by a counter‑affidavit, therefore, delay in filing of the civil revision before this Court is condoned. On merits, however, learned counsel for the respondent has vehemently opposed the civil revision on the ground that only those suits can be revived which were filed within 4 months with effect from. the date of the sale and as the suit in question was filed beyond period of 4 months with effect from the date of sale, it could not have been revived under the provisions of section 36 of the Punjab Pre‑emption Ordinance, 1990. Reliance has been placed on case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 Supreme Court

1. I have considered the arguments addressed by the learned counsel for the parties and have also gone through the record. Sale in this case n 26‑4‑1987. The suit was filed on U‑9‑1987. In paragraph 5 of plaint allegations of making of Talabs in accord with the injunctions of Islam have been made. The suit has been dismissed by .the learned Lower Court on the ground that no decree can be passed in the suit in view of law declared in Shariat Review Petition No.l‑R/1989. The petition seeking revival of the suit was filed under section 36 of the Punjab Pre‑emption Ordinance, 1990 which has been dismissed by the learned Trial Court on the ground that the allegation of avoidance of "Zarar" and existence of "Zaroorat" has not been made in the plaint. This view is contrary to the law declared in case of "Haji Rana Muhammad Shabbir Ahmad Khan" referred to supra by both the learned counsel for the parties. Resultantly, the order of dismissal of the application seeking revival of the suit passed by the learned trial Court is not in accord with the law declared by their Lordships of Supreme Court of Pakistan. At the time when the suit in question was filed, it was governed by the provisions of Muslim Law in view of law declared in case of Mst. Safia Begum v. Ibrahim and 4 others and Ghulam Qadir and another v. Nadir Khan and 4 others PLD 1989 SC 314, whereunder no specific period of limitation could be a bar to the suit, hence, the suit having been filed in accord with the provision of Muslim. law could have been tried in accord therewith, which was illegally dismissed by the learned trial Court. This suit could be revived in view of provision of section 36, subsection (2) of the Punjab Pre‑emption Ordinance, 1990 provided the right of pre‑emption as disclosed in the suit exists in accord with the provisions of Muslim Law. In the case in hand the pre‑emptor had alleged the existence of superior pre‑emptive right on the basis of his qualification of being a co‑sharer in the Khata and also having made three Talabs in accord with the Injunctions of Islam. Qualification plus making of Talabs has given an actionable and enforceable cause of action in favour of the pre‑emptor. This is sufficient to get the suit revived in terms of the provisions of section 36, subsection (2) of the Punjab Pre‑emption‑ Ordinance, 1990 and the period of 4 months for filing of pre‑emption suit which was not the limitation for filing of present suit will not be relevant for the purpose of decision of the application seeking revival of the suit. The case in hand is fully covered by the law declared in case of "Ghulam Hamdani" referred to supra in which report at page 1088‑1089, it has been held as under:‑ "As stated earlier, the sale took place after the judgment in Said Kamal Shah's case and the suit was filed on 5‑3‑1987 within one year, according to the provisions of subsection (2) of section 36 and the order of rejection having been passed on 27‑10‑1987 prior to 28‑3‑1990, the plaintiff/appellant was legally entitled to apply within sixty days of the coming into force of the Act for revival of suit and its decision on merit but the matter being sub judice in this Court after the leave granting order the appellant could not possibly submit the application and this Court in view of the peculiar circumstances of this case can order revival of the suit and decision on merit. However, the other objection raised by the learned counsel for the respondents of "Zaroorat" and to avoid "Zarar" requires serious consideration. In the case of Muhammad Iltaf v. Muhammad Nawaz 1992 MLD 1207 the learned Single Judge of the Lahore High Court held that "pleading of Zaroorat or avoidance of Zarar was essential" and his view was maintained in Civil Petition N o.180 of 1992 by this Court. However, the Federal Shariat Court in its judgment in case Muhammad Ismail Qureshi v. Government of Punjab PLD 1991 FSC 80 declared subsection (2) of section 6 as against the injunction of Islam and repugnant to the principle enunciated in the Holy Sunnah of Hazrat Muhammad (p.b.u.h.) for the simple reason that in Islam the right of pre‑emption is itself based on Zaroorat (necessity) and to avoid Zarar (harm) as enunciated in Said Kamal Shah's case. The judgment, no doubt, is subject to appeal before the Shariat Appellate Bench of this Court and as such the validity or otherwise of subsection (2) of section 6 being sub judice has to be left open for consideration in a future case. In the case of Federation of Pakistan v. N.‑W.F.P. Government PLD 1990 SC 1172 the Shariat Appellate Bench of this Court, though in a criminal matter, expressed the view that in a state of vacuum like the one in question the injunction of Islam as contained in the Qur'an and Sunnah shall be deemed to be the law on the subject. The appellant has pleaded Talbs in the plaint and has based his right of pre‑emption on contiguity and participation in immunities and appendages such as the right of way. This much was sufficient to complete the pleading." In view of the above I accept this civil revision, set aside the order, dated 9‑3‑1993 passed by the learned trial Court, accept the application for revival of the suit and set aside the judgment and decree of dismissal of the suit and remand 'the suit to the learned trial Court for decision of the same afresh in accordance with law. In view of the difficult legal question involved in this case, the parties are left to bear their own costs. . A. A./M‑1441/L Revision accepted.